SECTION I — OVERVIEW

Chairperson’s Message

For the fourth consecutive year, in 2004–2005 the number of complaints the Canadian Human Rights Commission referred to the Canadian Human Rights Tribunal in accordance with the Canadian Human Rights Act continued to increase. This level of workload poses a significant challenge for the Tribunal, particularly because there has also been an increase in the number of parties appearing before the Tribunal without legal assistance or representation on their behalf. Many complainants are people of modest means who are not able to afford legal representation. Respondents at the federal level, however, are mostly large corporations or government departments, well resourced and well represented at Tribunal hearings.

One result is that cases that proceed to hearing take longer to complete as lay litigants struggle to cope with an unfamiliar process. Another result is an extra burden on Tribunal staff, to whom unrepresented parties turn for guidance in dealing with pre-hearing procedures and in presenting their case at the hearing.

In response, the Tribunal has prepared guides designed to assist unrepresented parties in understanding the Tribunal’s process. The Tribunal will also be introducing new technology, such as an automated case management system, to assist in better management of the complaints that come before it.

In late 2003, the Tribunal’s Chairperson was appointed to the Federal Court. The position of Chairperson was only recently filled by promotion from the Vice-Chairperson position in December 2004. The position of Vice-Chairperson was subsequently filled by promotion of a full-time Member in February 2005, and the vacated full-time Member position was filled immediately following the fiscal year under report.

The Tribunal also experienced a transition in management during the last fiscal year. A new Registrar was appointed in May 2004 to replace the retiring Registrar, who had 26 years of corporate history and had been with the Tribunal since its creation as a separate, independent body from the Commission.

The increased number of complaint referrals continued to challenge the Tribunal in 2004–2005. The Tribunal has nevertheless continued to perform well in meeting its legislated mandate to provide an adjudication process that is efficient, equitable and fair, and I am sure that the Tribunal is well positioned to continue to meet these challenges into the future.

Management Representation Statement

I submit, for tabling in Parliament, the 2004–2005 Departmental Performance Report (DPR) for the Canadian Human Rights Tribunal.

This document has been prepared based on the reporting principles contained in the Treasury Board of Canada Secretariat’s Guide for the Preparation of 2004–2005 Departmental Performance Reports :

• It adheres to the specific reporting requirements;
• It uses an approved Business Lines structure;
• It presents consistent, comprehensive, balanced and accurate information;
• It provides a basis of accountability for the results pursued or achieved with the resources and authorities entrusted to it; and
• It reports finances based on approved numbers from the Estimates and the Public Accounts of Canada.

Summary Information

Raison d’être

The Canadian Human Rights Tribunal is a quasi-judicial body that hears complaints of discrimination referred to it by the Canadian Human Rights Commission (the Commission) and determines whether the activities complained of violate the Canadian Human Rights Act (CHRA). The purpose of the CHRA is to protect individuals from discrimination and to promote equal opportunity. The Canadian Human Rights Tribunal also decides cases brought before it under the Employment Equity Act (EEA) and, pursuant to section 11 of the CHRA, determines allegations of wage disparity between men and women doing work of equal value in the same establishment.

Total Financial Resources

Planned Spending ($ millions)	Total Authorities ($ millions)	Actual Spending ($ millions)
4.3	5.0	4.2

Total Human Resources

Planned (FTEs*)	Actual (FTEs*)	Difference
26	26	—

*Full-Time Equivalents.

Summary of Performance in Relationship to Departmental Strategic Outcomes, Priorities and Commitments

Strategic Outcome	2004–2005 Priorities/Commitments*	Type	Planned Spending	Actual Spending	Expected Results and Current Status
Canadians have equal access to the opportunities that exist in our society through the fair and equitable adjudication of human rights cases that are brought before the Canadian Human Rights Tribunal.	1. Review existing performance targets.	Ongoing	n/a		Successfully met
	2. Complete remaining Modern Comptrollership initiatives.	Ongoing	$30,000	$17,755	Successfully met
	3. Review and consider developing and implementing a communications strategy to fully inform the public about our mandate and purpose.	Ongoing	n/a		Successfully met
	4. Continue to work, as required, with the Department of Justice on possible amendments to the CHRA, in response to the La Forest Report. 1	Ongoing	n/a		Ongoing
	5. Develop new tools to assist unrepresented parties who appear before the Tribunal.	New	$25,000	Nil	Partially met, ongoing
	6. Plan for a smooth transition for the change in senior management.	New	n/a		Successfully met
	7. Conduct a review on the feasibility and benefits of a new computerized case management system and electronic filing system.	New	$300,000	$33,076	Successfully met, with ongoing improvements
	8. Other — Business as usual		$3,923,000	$4,144,915	Ongoing business
	Total		$4,278,000	$4,195,746	Ongoing business

      ¹ Promoting Equality: A New Vision , published by the Canadian Human Rights Act Review Panel under the authority of the Minister of Justice and the Attorney General of Canada, Ottawa, 2000 (available at http://canada.justice.gc.ca/chra/en/ ).

      Note: Priority number 1 in the Tribunal’s 2004–2005 Report on Plans and Priorities arises from a survey conducted by the Tribunal in 2002 on the quality of services provided to clients. The status of this priority has been reported in the Tribunal’s previous fiscal year Performance Report as having been met. The results of the survey suggested a relatively high level of satisfaction with the Tribunal Registry’s services. The decision not to hold another survey at this time, however, stems from concerns as to the validity of conclusions based on responses from the small number of clients who would be available for such a survey.

Overall Performance

The Tribunal’s mission is to ensure that Canadians have equal access to the opportunities that exist in our society through the fair and equitable adjudication of the human rights cases that are brought before it. Pursuit of that goal requires the Tribunal to determine human rights disputes in a timely, well-reasoned manner that is consistent with the law.

The Tribunal is a small organization with very limited resources. Its ability to draw from internal resource reallocations is practically non-existent. The evidence and issues raised in complaints referred to the Tribunal are becoming increasingly more complex, the workload is increasing and the timelines for processing complaints continue to be challenged. Nonetheless, the period under report was remarkably productive, both from the perspective of an efficient and expeditious inquiry process and from the viewpoint of fair and impartial disposition of complaints.

For a second consecutive year, the number of complaints the Tribunal received was the highest in its history. In 2003, the Tribunal opened 130 complaint files. In 2004, that number rose to 139 complaints, a 200-percent increase over the Tribunal’s previous seven-year average of 44.7 cases per year. Table 1 shows the number of new complaints referred to the Tribunal from 1996 through 2004. In addition, the Tribunal rendered 19 decisions and 21 rulings in 2004.

Table 1: New Cases, 1996 to 2004*

	1996	1997	1998	1999	2000	2001	2002	2003	2004	Totals
Human Rights Tribunals/Panels	15	23	22	37	70	83	55	130	139	574
Employment Equity Review Tribunals appointed	0	0	0	0	4	4	0	0	0	8
Totals	15	23	22	37	74	87	55	130	139	582
* Complaints are referred to the Canadian Human Rights Tribunal by the Canadian Human Rights Commission in accordance with the Canadian Human Rights Act .

In 2004–2005, the Tribunal began to take a much more active approach to managing cases, followed up on implementation of its Modern Comptrollership Action Plan, piloted a new automated case management process and made a smooth transition to the change in senior management that resulted in a new Chairperson, Vice-Chairperson and Registrar.

A factor that has helped to mitigate the workload facing the Tribunal in 2004–2005 is the continuity of its membership. Beginning in 2003 when his predecessor was appointed to the Federal Court, the Tribunal’s Vice-Chairperson acted in the position of Chairperson before being promoted to the latter post by the Minister in December 2004. His established expertise with the inquiry process and mediation has allowed the Tribunal to avoid any loss of efficiency that would have accompanied a steeper learning curve. Similarly, in February 2005, the Minister also promoted an experienced full-time Tribunal Member to the vacated position of Vice-Chairperson. Shortly after the end of the period under report, the resulting full-time Member vacancy was filled. The Tribunal is now operating with a full complement of full-time Members, in addition to a total of six part-time Members representing various geographical locations across Canada.

Operational Environment

The tone of hearings before the Tribunal has become more adversarial and the hearing process more frequently the subject of motions and objections than in the past. Although the Tribunal has developed pre-hearing disclosure procedures to ensure a fair and orderly hearing, the efficiency of that process is frequently threatened by missed deadlines, requests for adjournment and issues vehemently contested between the parties. Such situations are often exacerbated in cases where a party is without legal representation. At the end of the day, the only way out of an impasse is for the Tribunal to intervene by holding a case management conference.

Hearings on the merits of a complaint (i.e., evidence, testimony and legal argument) are also longer and more complex than in the past. Parties are sometimes uncertain of or untrained in how to focus on the issues that require adjudication by the Tribunal. While the Commission’s experience at both the pre-hearing and the hearing stage is of considerable help to parties and to the Tribunal, the Commission does not participate in all hearings. The end result is sometimes manifested in additional hearing days, at considerable expense to the parties, as well as to the Tribunal. Once again, the Tribunal has met a new challenge by adapting its approach. It has taken the opportunity to conduct case management conferences with the parties at strategic points throughout the pre-hearing process, to guide the parties toward a more predictable, streamlined and fair approach to the conduct of cases. Case management conferences — an innovation the Commission contributed to and participates in — will enable the Tribunal to ensure more effective and efficient hearings that are more consistent with the expeditious process contemplated by the CHRA.

Faced with its highest-ever volume of new complaints and with the delays described above, the Tribunal cannot reasonably expect that all cases can be completed within the 12-month target period. Based on the procedural adjustments made in 2003–2004, however, and given the more active case management approach adopted in 2004–2005, the Tribunal is optimistic it can minimize the impact of delays. And while the Tribunal is always careful when imposing constraints, particularly in terms of time, so as not to exert undue pressure on parties, it nevertheless sees a more proactive case management approach as one that will benefit parties through a more balanced and efficient use of the available resources.

Context

Jurisdiction

The Canadian Human Rights Act (CHRA) protects all Canadians against discrimination by federally regulated employers or service providers, including: federal government departments and agencies; Crown corporations; chartered banks; interprovincial railways; airlines; telecommunications and broadcasting organizations; and shipping and interprovincial trucking companies. Complaints may relate to discrimination in employment or in the provision of goods, services, facilities and accommodation that are customarily available to the public. The CHRA prohibits discrimination on the basis of race, national or ethnic origin, colour, religion, age, sex, marital status, family status, sexual orientation, disability or conviction for which a pardon has been granted. Complaints of discrimination based on sex include allegations of wage disparity between men and women doing work of equal value in the same establishment.

In 1996, the Tribunal’s responsibilities were expanded to include the adjudication of complaints under the Employment Equity Act (EEA), which applies to all federal government departments and federally regulated private sector employers with more than 100 employees. Employment Equity Review Tribunals are created, as needed, from Members of the Tribunal. The subject of the inquiry usually relates to the Tribunal’s review of a direction given by the Canadian Human Rights Commission to an employer with respect to an employment equity plan. The Tribunal, after hearing evidence and oral argument, may confirm, rescind or amend the Commission’s direction. Since the first appointment of such a tribunal in February 2000, only seven more applications have been made. No applications were made in either 2003–2004 or 2004–2005 (see Table 1). To date, there are no open cases and no hearings have been held, because the parties have reached settlement before a hearing commenced. The EEA has been scheduled for parliamentary review in 2005.

Parliament’s passage of amendments to the CHRA in 1998 provided for a more highly qualified Tribunal, which we believe is generating a more consistent body of jurisprudence through its decisions and written rulings. In the years since the amendments were passed, we continue to perceive a greater acceptance of the Tribunal’s interpretation of the Act by the reviewing courts. This development is expanded upon in Section II of this report (see Table 3). Eventually, this acceptance will benefit complainants and respondents and will ultimately result in more timely, fair and equitable disposition of complaints, at a reduced cost to the justice system.

Risk Management Issues

The Tribunal faced risks in two major areas in 2004–2005: workload issues and the increased number of unrepresented parties. Developments in these areas were expected to have a substantial impact on how the Tribunal conducts its business and its ability to fulfil its mandate. The following is a brief synopsis of these risks and what the Tribunal is doing to address them.

The number of complaints referred to the Tribunal has risen dramatically since 2002 when only 55 cases were received. In 2003, 130 new complaints were referred, and in 2004, that number rose again to 139 complaints, significantly higher than the average of 45 referrals per year from 1996 through 2002.

In addition to the higher volume of complaints, the Tribunal is also faced with the challenge of conducting an adjudicative process in which many complainants are unrepresented by legal counsel. The Commission’s role before the Tribunal is not to provide legal representation for complainants but rather, inter alia , to represent the public interest. Nevertheless, the Commission can be of significant assistance to parties and to the Tribunal in the Tribunal’s adjudicative process. In 2002, however, the Commission began to limit its participation in hearings before the Tribunal. As a result, many complainants who would otherwise have relied on Commission counsel to lend support are now required to conduct their cases, present evidence and call witnesses without legal assistance. Accordingly, Tribunal Members and staff must spend much more time explaining the process and coordinating mediation and hearing activities. In addition, the filing of documents with the Tribunal is delayed, additional case management attention is required and the hearings themselves generally move much more slowly.

The Tribunal has made several changes in response to these circumstances. The practice of mediation was reintroduced in March 2003, after having been discontinued for reasons that are still relevant and that are explained in past reports. The Tribunal also adjusted operating procedures to better meet the needs of unrepresented parties; revised initial correspondence to the parties to ensure better understanding of the information required to process a complaint; and adopted a more aggressive approach to case management to keep the process on track and to ensure parties meet deadlines.

Although operating policies and procedures continue to be adjusted, such a large increase in workload and the challenges of dealing with unrepresented parties has placed considerable stress on the Tribunal’s ability to meet its targeted timeframes for processing complaints. While the delays are not significant at this time, the Tribunal considers any decline in service to our clients to be unacceptable. The Tribunal is continuing to monitor its workload and procedures closely, and is making adjustments where necessary to ensure the quality of the services it provides is not compromised.